Time to spank hit back

When it comes to charting the sexual history of this decade, perhaps two events will stand out. The first relates to a report that slightly pre-dates New Labour’s coming to power. In 1995, the Law Commission tentatively suggested that unless serious social harm was being done, sado-masochistic acts ought not to be the subject of criminal law.

Their proposal was duly considered by SORT – and duly shelved. For when it came to issues of consent, the Law Commission was interested in the question of when it was permissible for an individual to say Yes – without expecting the heavy hand of the state to intervene. Not so SORT, for whom the central questions of consent were about when the state should back an individual’s right to say No.

Both questions need to be addressed: but under New Labour, the second has taken priority.

Last observation, though, to Law Professor Stephen Guest. A recent debate in the Lords considered whether to permit a "freedom of expression" exemption in respect of a proposed new law on "stirring up homophobic hatred".

On behalf of the government, opposing the freedom of speech clause, Justice minister Claire Ward stated that the problem with having such a clause was that people would use that "freedom of speech" clause to attack gays.

Professor Guest writes: "It was clear she had no grasp of the fundamental importance of freedom. That stance, that freedom of speech was a hindrance to freedom, will eventually backfire. If you are claiming legitimacy for your view that the rights to freedom of gays, of minority religions, and of racial minorities is fundamental, as I do, it is not in your interest to try to achieve this by attacking the idea of freedom in general."

In the end, that may well serve as an epitaph for the entire decade when it comes to revision to the laws on sexuality: on the one hand, an acitivity that is being practiced in more and more outlandish ways by individuals whose primary motivation is about having fun; on the other, a protectionist government, whose gut reaction to this situation - as many others - is a desire to impose a level of top-down nit-picking control which is in the end wholly at odds with that activity. ®